People Ex Rel. Dimas v. Shimp

APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.

MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Petitioner, Gregory Dimas, brings this appeal from an order of the circuit court of Du Page County denying a writ of habeas corpus and ordering defendant extradited to the State of Nevada.

We affirm.

Petitioner was arrested by the respondent, sheriff of Du Page County, on February 7, 1978, upon a fugitive from justice warrant issued out of Du Page County. On February 8, 1978, petitioner appeared before a judge. Bail was set, and he was held in custody in lieu of bond; the case was continued to March 8, 1978, the maximum time allowed. On March 8, 1978, the State asked for additional time, and the matter was continued to April 7, 1978; bond was reduced to $10,000. On March 24, 1978, petitioner posted bail and was released. On April 7, 1978, the State moved to nolle pros, and the matter was dismissed. At this time, petitioner advised the court that he was a narcotic addict in need of treatment and had delayed seeking treatment pending the outcome of the extradition proceedings. He stated that he would voluntarily commit himself to a one-year treatment program for narcotic addicts at Tinley Park State Hospital. Petitioner subsequently voluntarily enrolled himself in a drug treatment program at the Tinley Park Drug Center after his release from the Du Page County jail.

The governor's warrant was issued on April 14, 1978, at the request and demand of the Governor of Nevada, which was made on April 7, 1978. On June 26, 1978, petitioner filed a petition for a writ of habeas corpus asking the court to quash the governor's warrant. The trial court denied the petition. Petitioner contends that his petition for writ of habeas corpus should have been granted and extradition denied because the documents presented to support the governor's warrant were defective in that they were not in compliance with sections 3 and 23 of the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1977, ch. 60, pars. 20, 40).

 1 At the outset it must be stated that proceedings for the interstate extradition of criminals are controlled by the Federal Constitution and Federal law. Section 2 of article IV of the Constitution of the United States provides, in part, that:

"A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. (U.S. Const., art. IV, § 2.)

"Whenever the executive authority of any State * * * demands any person as a fugitive from justice, of the executive authority of any State * * * to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State * * * charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor * * * of the State * * * from whence the person so charged has fled, the executive authority of the State * * * to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged."

"While it is generally recognized that States may enact legislation ancillary to and in aid of this provision of the United States constitution and its supplementary Federal legislation, it is also well settled that such enactments must not be inconsistent with the constitutional purpose or restrict the summary exercise of the authority of the executive. (Biddinger v. Commissioner of Police, 245 U.S. 128, 62 L.Ed. 193; United States ex rel. McCline v. Meyering, 75 Fed.2d 716; People ex rel. Millet v. Babb, 1 Ill.2d 191; 22 Am. Jur., par. 9, pages 249, 250.) State legislation in conflict with the intent and meaning of the Federal constitutional provision is void. (People ex rel. Carr v. Murray, 357 Ill. 326.) `Every State's right to punish its offenders must be assured and such offenders should not be accorded protective asylum by another State. Federal, rather than State control, is essential to avoid a diversity of requirements and procedures.' People ex rel. Millet v. Babb, 1 Ill.2d 191, 196.

These salutary principles are expressly recognized in the language of section 2 of the Uniform Criminal Extradition Act which provides: `Subject to the provisions of this Act, provisions of the Constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, it is the duty of the Governor of this State to have arrested and delivered up to the Executive Authority of any other state of the United States any person charged in that State with treason, felony, or other crime, who has fled from justice and is found in this State.' (Ill. Rev. Stat. 1957, chap. 60, par. 19.) It is apparent, therefore, that the General Assembly intended that the procedures and requirements of the uniform act be consistent with the Federal constitution and its supplementary Federal legislation."

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